1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).

2. Neal Puckett formerly entered his appearance.

3. Mr. Puckett asked for a continuance because he is appearing in United States v. Wuterich, at Camp Pendleton, CA, beginning 2 November 2010.

4. Trial was continued to 14-16 December 2010.

5. The judge indicated that the defense had raised an issue with Specifications 3 and 4, Charge II, indicated that would be taken up later, and referred counsel to United States v. Jones.

6. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010) is a recent case on multiplicity and LIO’s. A quick look at the specifications indicates that they could be the same offense charged twice and potentially multiplicious – under pre-Jones case law.

It would seem to me that the prosecution argument is that they are charging for “contingencies of proof,” that the best resolution is to wait until the evidence is in before deciding the issue. At that time the judge can instruct the members that they can find LTC Lakin guilty of one of the two offenses but not both. Or she can let the members decide and if they find guilt on both she can dismiss one. Even if there’s a multiplicity issue that won’t have a significant effect on LTC Lakin’s punishment exposure.

“… the best resolution is to wait until the evidence is in before deciding the issue. At that time the judge can instruct the members that they can find LTC Lakin guilty of one of the two offenses but not both. Or she can let the members decide and if they find guilt on both she can dismiss one. Even if there’s a multiplicity issue that won’t have a significant effect on LTC Lakin’s punishment exposure.”

Of course multiplicity increases exposure.

To better understand this, take the “two offense” example to the theoretical limit, “all offenses that exist.” Then collect evidence applicable to any offense that exists.

All have sinned and fall short of the glory of God (Romans 3:23a). For there is not a just man on earth who does good and does not sin (Eccl 7:20). Everyone is guilty of something.

Therefore, increasing the liability to “all offenses that exist” guarantees 100% exposure to punishment. Likewise, increasing the liability from one offense to two offenses increases the exposure, from the “one offense” level, some undetermined percentage toward the “all offenses that exist” level: 100% exposure.